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TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that on May 31,2017, at 8:30 a.m., or as soon thereafter as the

3 ~ matter may be heard in Department M of the Los Angeles Superior Court, located at 1725 Main

4 ~Street,Santa Monica,California90401,defendants MJJ Productions,Inc.,and MJJ Ventures,Inc.,

5 ~ will bring on for hearing their demurrer to the Third Amended Complaint of plaintiffJames

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The demurrer will be made pursuant to Code of Civil Procedure section 430.10 on the

~ grounds that Safechuck's Third Amended Complaint is insufficiently pleaded because, among

other things, it is uncertain and fails to state facts sufficient to constitute timely causes of action

against either or both defendants MJJ Productions,Inc.,and MJJ Ventures,Inc.

This demurrer follows a meet and confer pursuant to Code of Civil Procedure § 430.41.

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eclaration of Jonathan P. Steinsapir(attached) at ¶ 2.

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T his demurrer is based upon this Notice, the attached Demurrer, the attached

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M emorandum ofPoints and Authorities,the Request for Judicial Notice,Safechuck's Third

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A mended Complaint,Safechuck's prior complaints,any further briefing on this matter,the

16 C ourt's files and records in this case and in the related cases(including the probate proceedings,

17 Case No. BP 117321), and on such other and further written and oral argument as may be

18 presented in connection with any hearing on this matter.

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D

ATED: March 31,2017

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Respectfully Submitted:

KINSELLA WEITZMAN ISER KUMP &

ALDISERT LLP

Jonathan P. Steinsapir

A ttorneys for Defendants

M JJ Productions, Inc. and MJJ Ventures, Inc.

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

DEMURRER

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Defendants MJJ Productions,Inc.,and MJJ Ventures,Inc.(collectively,"the

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Corporations"), herby demur to the Third Amended Complaint on the following grounds:

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1.

The First Cause of Action for "Intentional Infliction of Emotional Distress" fails as

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a matter oflaw for either or both ofthe following reasons:(a)the facts alleged in the Third

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A mended Complaint("TAC" orjust"Complaint"),along with facts upon which the Court may

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~takejudicial notice,fail to constitute a valid cause of action for "Intentional Infliction of

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E motional Distress" at all; and(b)the facts alleged in the Complaint, along with facts upon which

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the Court may takejudicial notice,do not sufficiently allege a timely cause ofaction for

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"Intentional Infliction ofEmotional Distress"(or,stated differently,those facts affirmatively

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confirm that this cause of action is barred by the applicable statutes of limitations, including but

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not limited to Code of Civil Procedure section 340.1,along with Code of Civil Procedure sections

13 335.1,340(3)(applicable to alleged tortious conduct prior to 2002),352,and 366.2,and Probate

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~v`; 14 Code section 9351).No amendment can cure these defects.

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2. The Second Cause of Action for"Negligence"fails as a matter oflaw for either or

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both ofthe following reasons:(a)the facts alleged in the Complaint, along with facts upon which

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the Court may take judicial notice,fail to constitute a valid cause of action for "Negligence" at all;

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and(b)the facts alleged in the Complaint, along with facts upon which the Court may take judicial

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notice,do not sufficiently allege a timely cause ofaction for"Negligence"(or,stated differently,

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those facts affirmatively confirm that this cause of action is barred by the applicable statutes of

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limitations,including but not limited to Code of Civil Procedure section 340.1, along with Code of

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Civil Procedure sections 335.1, 340(3)(applicable to alleged tortious conduct prior to 2002), 352,

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and 366.2,and Probate Code section 9351). No amendment can cure these defects.

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3.

The Third Cause of Action for"Negligent Supervision"fails as a matter oflaw for

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either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with facts

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upon which the Court may take judicial notice,fail to constitute a valid cause of action for

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"Negligent Supervision" at all; and (b)the facts alleged in the Complaint,along with facts upon

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which the Court may takejudicial notice,do not sufficiently allege a timely cause ofaction for

DEMiIRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

"Negligent Supervision"(or,stated differently,those facts affirmatively confirm that this cause of

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~ action is barred by the applicable statutes of limitations, including but not limited to Code of Civil

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Procedure section 340.1, along with Code of Civil Procedure sections 335.1, 340(3)(applicable to

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alleged tortious conduct prior to 2002),352, and 366.2,and Probate Code section 9351). No

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amendment can cure these defects.

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4.

The Fourth Cause of Action for"Negligent Retention/Hiring"fails as a matter of

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law for either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with

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facts upon which the Court may take judicial notice,fail to constitute a valid cause of action for

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"Negligent Retention/Hiring" at all; and(b)the facts alleged in the Complaint, along with facts

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upon which the Court may takejudicial notice,do not sufficiently allege a timely cause ofaction

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for "Negligent Retention/Hiring"(or,stated differently,those facts affirmatively confirm that this

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cause of action is barred by the applicable statutes of limitations,including but not limited to Code

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of Civil Procedure section 340.1,along with Code ofCivil Procedure sections 335.1,340(3)

'^ J" 14 (applicable to alleged tortious conduct prior to 2002),352, and 366.2,and Probate Code section

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9351).No amendment can cure these defects.

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5.

The Fifth Cause of Action for"Negligent Failure To Train, Warn or Educate" fails

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~as a matter oflaw for either or both ofthe following reasons:(a)the facts alleged in the

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Complaint,along with facts upon which the Court may take judicial notice,fail to constitute a

19 valid cause of action for "Negligent Failure To Train, Warn or Educate" at all; and (b)the facts

20 alleged in the Complaint, along with facts upon which the Court may take judicial notice, do not

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sufficiently allege a timely cause of action for"Negligent Failure To Train, Warn or Educate"(or,

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stated differently, those facts affirmatively confirm that this cause of action is barred by the

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applicable statutes oflimitations,including but not limited to Code of Civil Procedure section

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340.1, along with Code of Civil Procedure sections 335.1,340(3)(applicable to alleged tortious

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conduct prior to 2002),352,and 366.2,and Probate Code section 9351). No amendment can cure

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these defects.

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6.

The Sixth Cause of Action for"Breach of Fiduciary Duty" fails as a matter oflaw

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~for either or both ofthe following reasons:(a)the facts alleged in the Complaint, along with facts

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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upon which the Court may takejudicial notice,fail to constitute a valid cause of action for

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"Breach of Fiduciary Duty" at all; and (b)the facts alleged in the Complaint, along with facts upon

which the Court may takejudicial notice,do not sufficiently allege a timely cause ofaction for

"Breach ofFiduciary Duty"(or,stated differently,those facts affirmatively confirm that this cause

of action is barred by the applicable statutes of limitations,including but not limited to Code of

CivilProcedure section 340.1,along with Code of Civil Procedure sections 335.1,340(3)

(applicable to alleged tortious conduct prior to 2002), 352, and 366.2, and Probate Code section

9351).No amendment can cure these defects.

W HEREFORE,the Corporations pray that this demurrer be sustained without leave to

amend,and that the Court grant such other and further reliefas the Court deemsjust and proper.

D ATED: March 31,2017

Respectfully Submitted:

KINSELLA WEITZMAN ISER KUMP &

ALDISERT LLP

B y:

Jonathan P. Steinsapir

A ttorneys for Defendants

M JJ

Productions,Inc. and MJJ Ventures,Inc.

DEMiJRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

I.

INTRODUCTION

 

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This case, along with the facts and law governing it, are by now familiar to the Court.

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~PlaintiffJames Safechuck seeks to recover money damages against the Estate of Michael Jackson,

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through this civil action againsttwo corporations,Defendants MJJ Productions,Inc.,and MJJ

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V entures,Inc.("the Corporations").The Corporations were wholly owned by Michael Jackson

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'i ~ during his lifetime and are now specific assets of the Estate generally. Five years after Michael's

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~death, Safechuck petitioned to file a late creditor's claim against the Estate in May 2014. That

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petition was dismissed after two demurrers,the second being sustained without leave to amend

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(with Safechuck wisely declining to seek appellate review of it). In this civil action, Safechuck has

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repeatedly attempted to revive his claims against the Estate by transforming the alleged criminal

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conduct ofMichael Jackson personally into the supposed "negligence"oftwo Corporations.

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T his is a demurrer to Safechuck's operative Third Amended Complaint("TAC" or

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~"Complaint"). It is now the third demurrer against Safechuck's claims in this civil action, thefifth

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demurrer involving Safechuck and the Estate. With the exception ofa few sham and conclusory

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allegations that flatly contradict Safechuck's more specific allegations(and that are contrary to

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16 law in any event),the latest Complaint is virtually unchanged from the Second Amended

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The handful offurther allegations do not sufficiently address the defects identified by the

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19 Court in its order sustaining the Second Amended Complaint. And in many cases,those defects

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20 w ere not addressed at all. This demurrer should be sustained without any further leave to amend.

21 II.

ALLEGATIONS OF THE THIRD AMENDED COMPLAINT

22 G iven the Court's familiarity with this action, we limit our discussion here to the few

23 changes made from the Second Amended Complaint to the Third Amended Complaint. The Third

24 Amended Complaint does notalter any allegations regarding the following:(1)Michael Jackson

25 having "established" both ofthe Corporations,being the"president/owner"ofboth entities,and

26 ~~the entities being his"alter egos for the childhood sexual abuse alleged herein,"and his

27 "alternative personalities](TAC ¶¶ 3-5,9, 100);(2)Safechuck's background,how he and his

28 family came to know Michael Jackson personally, and the Safechucks' fleeting interactions with

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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~the Corporations and their employees(id. ¶¶ 10-30);(3)the substantive(albeitfalse)allegations of

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1 ~abuse, which supposedly took place at times from mid-1988 "through 1992" and supposed

"grooming" by Michael(id. ¶¶ 31-63,83-100);(4)the Safechucks'and Michael's interactions

after the alleged abuse ended in 1992 (id. ¶¶ 64-76), and (5) various other matters. As necessary,

w e discuss these common allegations more specifically below in the Argument section.

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s best we can tell,the "new" allegations are largely contained in paragraphs 112,and 114

through 116. Plaintiffnow alleges that the Corporations were created in part to "provide for the

8 w elfare and safety of minor children." 1(TAC ¶ 114.) Safechuck further alleges in conclusory

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fashion that:(1) Michael Jackson and the Corporations"groomed" children in the entertainment

10 industry;(2)the presence of minors in the Corporations'"custody" was known to Michael and the

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Corporations;(3)the Corporations paid for travel and lodging for children;(4)Plaintiffand other

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and providing them with basic care,the Corporations created a special duty with the minors.(Id.

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112.) It is unclear when the Corporations supposedly mentored, trained or provided services for

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Safechuck in particular. Rather,the Complaint alleges that Safechuck first"worked as an

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intern shadow director in Budapest, Hungary for Michael Jackson's `HlStory' promo video," after

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ichael Jackson andlor MJJ Productions and MJJ Ventures."(Id.¶ 70(emphasis added).)

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Plaintiffnow alleges in conclusory fashion that some unnamed "board of directors and

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officers"ofthe Corporations"conferred substantial actual and ostensible authority unto Michael

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Jackson."(TAC ¶ 114.) They "permitted" Michael: to sleep in bed with minors(in his own home);

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"train and coach" minors; to travel with minors; and to "have authority" over minors.(Ibid.)

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1 This, of course, is directly contrary to the Complaint's ludicrous allegations that the

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Corporations were"likely the most sophisticated public child sexual abuse procurement and

facilitation organization the world has known."(TAC ¶ 5.)For some perspective,and to learn

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about nonfictional child sex trafficking rings throughout the world,one should visitthe website of

UNICEF.https://www.unite£org/protection/57929_58022.htm1#CT.

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DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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Plaintiffalleges thatthe Corporations employed individuals who were "ceded authority by

2 D efendants to supervise Michael Jackson and the minors in his charge."(Id. ¶ 115.)He further

3 alleges that:(1)Norma Staikos and Jolie Levine were employed by the Corporations;(2)the

4 "safety, welfare,and well-being of all minor children entrusted to [the Corporations] was Ms.

5 Staikos and Ms. Levine's primary responsibility," and they were required to protect minors from

6 dangers including Michael Jackson; and(3) Michael Jackson took no actions to provide for safety

7 and care.(Ibid.)The Complaint further alleges that Ms. Levine and Ms. Staikos somehow had the

8 authority to limit Michael Jackson's access to children by dictating to the children'sparents that

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9 they had to be present with their children at all times, and enforcing some unknown "rules" about

10 reporting or implementing procedures to limit Michael's access to children(in his home).

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Allegedly, Ms. Levine and Ms. Staikos assured parents of minors that their children would be safe

12 at Michael's home.(Ibid.)Finally,Plaintiffalleges that Ms. Levine and Ms. Staikos"knew or had

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13 reason to know" that Michael Jackson had a propensity to abuse children, had the authority to

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14 implement some sort of"reasonable safeguards" but failed to do so.(Id. ¶ 116.)

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s explained below,these new allegations: contradict more specific allegations in the

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common sense. They do not cure the defects in the Second Amended Complaint.

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18 III.

ARGUMENT

 

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Section 340.1.

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C ode of Civil Procedure section 340.1 ("section 340.1") is a statute of limitations. It does

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not itselfcreate duties of care and is not otherwise a basis for liability. At the same time, its

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provisions cannot be wholly divorced from an assessment ofthe viability ofthe causes ofaction

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here. Safechuck turned 18 on February 28, 1996.(TAC ¶ 10.)Absent section 340.1,all ofhis

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~claims would have been time barred as of February 28, 1997,"one year after[he]reached the age

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of majority, that is

the age of 19." Quarry v. Doe I, 53 Ca1.4th 945, 960-61 (2012).

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The Corporations are "entities" and not"natural persons." Thus,the Corporations cannot

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~ be liable as a "direct perpetrator" under subdivision(a)(1),including "as aiders and abettors or as

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child procurers." Boy Scouts v. Superior Court, 206 Ca1.App.4th 428, 445 (2012)(directing trial

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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~court to sustain demurrer without leave against Boy Scouts for lone cause of action for intentional

 

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~infliction ofemotional distress). Claims against third parties are generally barred "on or after the

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plaintiff's26th birthday."Code Civ.Proc.§ 340.1(b)(1).Safechuck commenced this action long

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after his 26th birthday.(TAC ¶ 10.) Thus, in order for any of Safechuck's causes of action to be

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viable,they must fall within section 340.1(b)(2),"a special exception to the age 26 cutoff."

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Quarry,53 Ca1.4th at 968(emphasis in original).

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Section 340.1(b)(2)is directed "against a narrow category of third party defendants," id. at

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~ 978, who have a right to control the perpetrator such that they could take "reasonable steps and[ ]

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implement reasonable safeguards to avoid acts of unlawful sexual conduct in the future by" the

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perpetrator. Code Civ. Proc. § 340.1(b)(2)."The third party must be in such a relationship with the

 

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perpetrator as to have some control over the perpetrator." Aaronoffv. Martinez- Senftner, 136

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C a1.App.4th 910,921 (2006). Subdivision(b)(2)"requires the sexual conduct to have arisen

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through an exploitation of a relationship over which the third party has some control."' Doe v. City

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of Los Angeles,42 Ca1.4th 531,544(2007)."The child must be exposed to the perpetrator as an

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inherent part ofthe environment created by the relationship between theperpetrator and the third

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This makes sense when one recalls that the Legislature enacted subdivision(b)(2)to

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extend the limitations period"in the wake ofpublic exposure ofsexual abuse by priests against

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19 children that had been condoned and covered up by the Catholic Church for so many years."

20 Q uarry,53 Ca1.4th at 988. Organizations like churches, schools and the Boy Scouts are in a

21 position to supervise or remove perpetrators ifthey learn of past abuse, because the organizations

22 have a right to control their pastors',teachers' or troop leaders' respective interactions with

23 children in their organizations. Likewise, children are "exposed to the perpetrator" pastors,

24 teachers,or troop leaders"as an inherent part ofthe environment created by the relationship

25 between the perpetrator and the third party"churches,schools,and youth organizations.

26 H ere, unlike the cases subdivision(b)(2) was designed to address,the Corporations were

27 ~created,owned and run by the alleged perpetrator—they were his alleged "alter ego" and

28 "alternative personalities"(TAC ¶¶ 5,9~and there are no factual allegations that the

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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Corporations had a legal right to control Michael in any relevant way. And as further explained

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below,the alleged abuse clearly did not arise as an inherent part ofthe ofthe environment created

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by the relationship between Michael Jackson and the Corporations. Therefore,all ofthe causes of

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action are time barred under section 340.1(b)(2).

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B.

The Second Through Fourth Claims Fail Because the Corporations Did Not

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H ire,Supervise or Retain Michael Jackson,and Had No Right To Do So.

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Safechuck's second through fourth causes ofaction againstthe Corporations are for

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~negligence,negligent supervision,and negligent hiring/retention of Michael Jackson by the

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C orporations.2 In California,an "employer may be liable to a third person for the employer's

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negligence in hiring or retaining an employee who is incompetent or unfit." Roman Catholic

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~Bishop ofSan Diego v. Superior Court, 42 Ca1.App.4th 1556, 1564 (1996)."To establish

12 negligent supervision,a plaintiffmust show that a person in a supervisorialposition over the actor

13 had prior knowledge of the actor's propensity to do the bad act." Z. V. v. County ofRiverside,238

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C a1.App.4th 889,902(2015)(emphasis added)."The tort has developed in California in factual

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settings where the plaintiff's injury occurred in the workplace,or the contact between the plaintiff

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and the employee was generated by the employment relationship." Mendoza v. City ofLos

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Angeles,66 Ca1.App.4th 1333,1339-40(1998).These concepts fitneatly with section

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340.1(b)(2)'s requirement that"[t]he child must be exposed to the perpetrator as an inherent part

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of the environment created by the relationship between the perpetrator and the thirdparty."

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A aronoff, 136 Cal.App.4th at 921 (emphasis added). These claims fail for various reasons.

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1. The Corporations Did Not Hire,Retain or Supervise Michael.

The negligent supervision, hiring and retention claims all fail as a matter oflaw because

the Corporations did not have the power to supervise, hire or fire Michael Jackson,their owner,

sole shareholder,and president.To address this problem from the Second Amended Complaint,

z The general negligence claim is really just a repeat of the negligent supervision and

related claims. Safechuck has also alleged negligence based on a "mandated reporter"theory and

"in loco parentis" duty which are discussed separately below at Section III.D.

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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Safechuck added conclusory allegations thatthe "board ofdirectors and officers of[the

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Corporations]conferred substantial actual and ostensible authority unto authority unto Michael

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Jackson,"(TAC ¶ 114),and thatthe Corporations somehow supervised Michael.(Id. ¶¶ 114-115).

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Of course,there is no allegation about who this"board" supposedly consisted of. That was no

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~accident as Safechuck knows from discovery in this case,during all relevant times here, Michael

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~Jackson was the sole director ofthe Corporations,i.e.,he was the sole member ofthe Board.See

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Corp. Code § 212(a)("so long as the corporation has only one shareholder,the number[of

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directors] may be one"). Regardless,for at least two reasons,these conclusory allegations, added

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in last-ditch effort to save his Complaint and cure the problems addressed in the prior demurrer,

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still do not show the requisite authority for a negligent hiring,retention or supervision claim.

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First,as a matter oflaw,the "board of directors and officers of a corporation cannot

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~"confer authority" on the sole shareholder. It is precisely the other way around. As sole

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shareholder,Michael Jackson had sole legal control over corporate activities,includingthe

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authority to hire or remove officers and directors. A California corporation is controlled by its

15 B oard of Directors. Corp. Code § 300(a). In turn,the Board is controlled by the shareholders.

~ 16 ~ When there is only one shareholder, as Safechuck admits was the case here, that shareholder

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controls the Board entirely. The Board is elected "by unanimous written consent of all shares."

 

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Corp. Code § 603(d). Any member ofthe Board may be removed by the sole shareholder."Any or

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19 all of the directors may be removed without cause if the removal is approved by the outstanding

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20 shares."Id. § 303(a). A corporation's officers are also controlled by the sole shareholder,through

21 his control of the Board. A corporation's "officers shall be chosen by the board and serve at the

22 pleasure ofthe board."Id. § 312(b). Michael was the sole shareholder ofthe Corporations. He

23 could not"negligently" hire himself,negligently "retain" himself,or negligently"supervise"

24 himself. See, e.g., Coit Drapery Cleaners v. Sequoia Ins. Co., 14 Ca1.App.4th 1595, 1601-02

25 (1993)("the trial court properly found thatthere was no way Coit,the corporate entity,could have

26 disciplined or supervised its president,chairman ofthe board, and major shareholder.").

27 Second, setting aside the insurmountable legal bar to Safechuck's argument under the

28 ~Corporations Code,the general,conclusory allegationsthatsome "board ofdirectors and officers"

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

ofthe Corporations hired,supervised or could have fired Michael are contrary to more specific

2 ~ allegations of this Complaint(and the prior complaints). Careau & Co. v. Sec. Pac. Bus. Credit,

3 ~Inc.,222 Cal.App.3d 1371,1390(1990)(on demurrer,specific allegations control over

4 inconsistent general allegations).Safechuck readily admits thatboth Corporations were

5 "established by Michael Jackson

as his primary business entity" and "in partfor the purpose of

6 employing" Safechuck,respectively.(Id. ¶¶ 3- 4.)These more specific allegations defeat the

7 general conclusory allegations thatsome board ofdirectors and officers"conferred authority"on

8 M ichael Jackson and thus hired him (or could have fired or better supervised him). Safechuck

a 9 expressly alleges that Michael was "the president/owner" of both entities,(ibid.), and he alleges

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that both entities were Michael's"alteregos for the childhood sexual abuse alleged herein,"and

11

were Michael's "alternative personalit[ies]."(Id. ¶¶ 5,9, 100.)Accordingly,these Corporations

12

had no existence or purpose other than to conduct Michael's business. Safechuck acknowledges

~ ¢~M 13 that"at all times relevant to the allegations,[Michael Jackson] was the one hundred per cent

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(100%) shareholder of[MJJ Productions and MJJ Ventures]."(RJN, Ex. A and Ex. B at ¶ 11.)

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statements that some"board of directors and officers" ofthe Corporations hired,supervised or

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could have fired Michael. Popescu v. Apple Inc., 1 Ca1.App.Sth 39, 50(2016)(trial court should

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disregard conclusions in pleadings at demurrer). There are likewise no allegations regarding what

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19 "the Board"supposedly knew about Michael's(falsely alleged)"propensity" with children.The

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20 allegation that the board conferred authority on Michael is nonsensical, contrary to California law,

21 and contradicts Safechuck's allegations throughout the Complaint and in all prior pleadings.

22 Simply put,the new allegations do not in any way suggest that Ms. Staikos, Ms. Levine or anyone

23 else working for the Corporations truly hired Michael Jackson,supervised him,or had the ability

24 tofire him.Indeed,Safechuck specifically alleges thatMichaelJacksonfired othersfor even

25 asking about Safechuck because he was "paranoid" about such questions.(TAC ¶ 53.)

26 Although Safechuck has added afew conclusory allegations aboutthe Corporations,they

27 ~~are insufficient to overcome Safechuck's allegations of Michael's clear control over the

28 C orporations. Furthermore, Safechuck has°utterly failed to allege(1) what Michael's Corporations

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

should have done in order to avoid negligently hiring Michael,(2) who had the authority to fire or

2

3

4

5

6

otherwise discipline Michael,and(3)who actually possessed any supervisory control over

M ichael. The reason for the absence of such allegations is obvious, and Safechuck cannot cure this

deficiency by further amendment. These deficiencies demonstrate why the negligence claims fail

on their own as well as why Safechuck could never meet the requirements under 340.1(b)(2).See

Joseph v. Johnson, 178 Ca1.App.4th 1404, 1412(2009)(negligence theories under section

7

340.1(b)(2)require that third party have "right to control" alleged perpetrator).

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2. The "Contact" was Not Generated From an Employment Relationship.

As a second independentreason why the claims for negligentsupervision,hiring and

retention claims fail,the alleged"contact" between Safechuck and Michael Jackson was not

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"generated by the employment relationship" between Michael and the Corporations(or the much

later employment relationship between Safechuck and the Corporations).Mendoza,66

C a1.App.4th at 1339-40. Or to use the same concept from section 340.1(b)(2), Safechuck's contact

with Michael did not arise"as an inherent part ofthe environment created by the relationship

between [Michael Jackson] and the [Corporations]."Aaronoff, 136 Ca1.App.4th at 921.

R ather,as set out in specific detail in the Third Amended Complaint(and prior versions of

it),Michael's and Safechuck's friendship developed before the Corporations had any involvement

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in anything regarding Safechuck. Safechuck alleges that,long before he met Michael,he started

w orking in commercials in 1984. In 1987, he was hired to be in a Pepsi commercial.(He does not

20 allege who hired him—presumably, it was Pepsi or its advertising agency.)(TAC ¶ 10.) Safechuck

21 alleges that he and Michael thereafter exchanged letters,visited each other's homes numerous

22 times, handed out money to the homeless, watched movies,talked on the phone, hung out, got to

23 know each other well,and became closefriends—all before any alleged abuse occurred.(TAC

24 ¶¶ 12-27.) Safechuck alleges that the abuse began in June 1988 when he and his mother joined

25 ichael on the Bad Tour,well over a year afterthe personal relationship had developed between

M

26 ichael,on the one hand,and Safechuck and his family,on the other.(Id. ¶ 31.)Safechuck

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27 alleges that Ms. Levine,Michael's secretary and personal assistant,was employed by Michael and

28 the Corporations in 1988(including one that did not exist)and made travel arrangements for the

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

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~Bad tour where the abuse allegedly began.(Id. ¶¶ 28-30.)But this does not shiftthe core

2

~relationship between Michael and Safechuck from personal to business. Plaintiff has failed to

3

~articulate how the abuse arose out of the relationship with the Corporations or how the

4

~ Corporations were a necessary or proximate cause ofthe abuse.

5

T he nexus between the Corporations and Michael's alleged abuse of Safechuck is

6

~ attenuated at best. That fleeting nexus did not create the opportunity for Michael to allegedly

7

m olest Safechuck."An employer is not charged with guaranteeing the safety of anyone his

8

employee might incidentally meet while on thejob against injuries inflictedindependent ofthe

9

p erformance of work-relatedfunctions." Federico v. Superior Court, 59 Cal.App.4th 1207, 1215

10

(1997)(emphasis added). Indeed, even ifone engaged in the rather absurd fiction that the

 

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Corporations could have declined to hire Michael—their sole shareholder for whom their

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between Michael and Safechuck and his family began and grew as a result of Michael's personal

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children, which are a direct result ofthe relationship between the pastors,teachers,or scout

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m asters and the church, school or troop.Doe,42 Ca1.4th at 544; Aaronoff, 136 Ca1.App.4th at 921.

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A ccordingly,even ifPlaintiffcould get by the fact that the Corporations, by definition,

21

~ never hired, supervised, or retained Michael Jackson at all,the alleged connection between the

22

C orporations and Michael's supposed abuse is far too attenuated to support these claims.

23

C.

All Negligence Causes of Action Fail Because Safechuck Cannot Allege That

24

the Corporations Had A Duty To Protect Him.

25

W hether a duty of care exists "is properly challenged by demurrer and is a question of law

26

for the court." Hegyes v. Unjian Enterprises, Inc., 234 Ca1.App.3d 1103, 1111 (1991)."As a

27

~ general rule,one owes no duty to control the conduct of another, nor to warn those endangered by

28

such conduct." Conti v. Watchtower Bible &Trade Society ofNew York, Inc., 235 Ca1.App.4th

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

~.1214, 1226(2015)."The rule is foundational in California tortjurisprudence. The tort law of

2 ~California does notimpose mandatory Good Samaritanism."Ibid.

3 Safechuck's negligence causes of action appear to rest on the general exception to the rule

4 ~of no duty of a third party to protect against, or prevent, a crime, i.e., when there is a "special

5 ~relationship"between the third party and the victim."Absent a `specialrelationship,'one cannot

6 ~be held liable for the mere nonfeasance,such as not protecting another from a criminal attack by a

7 third party." Eric J. v. Betty M., 76 Ca1.App.4th 715, 727 (1999)."[W]here the issue is whether the

8 defendant had a duty to protect the plaintifffrom harm caused by a third party,the absence of a

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9 special relationship is dispositive." Conti, 235 Ca1.App.4th 1228-29.

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10 Safechuck's negligence claims fail as a matter of law because there is no special

11

12 give rise to such a legal duty. Safechuck has not,and cannot,explain why the Corporations, who

relationship alleged in the Complaint between the Corporations and Plaintiffthat could possibly

13 had no relationship with him during the time he was allegedly abused,are somehow liable for his

14 alleged molestation by their owner. Safechuck is essentially alleging that all corporations have a

15 ~roving duty to police the alleged criminal conduct of their employees; and to protect anyone and

16 everyone from such alleged misconduct,regardless of the connection to the corporations. This is

17 particularly implausible when the alleged wrongdoer is "the president owner" ofthe company. See

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Coit Drapery, 14 Ca1.App.4th at 1605. Nothing in California law would support such an invasive

 

19

conception ofcorporations' duties to the general public.

20

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special relationship giving rise to a duty to protect a child from criminal conduct is

21

~generally reserved for schools,day care centers,or other youth organization such as the Boy

22

Scouts who act in loco parentis while a child is in attendance. See Juarez v. Boy Scouts of

23

A merica,Inc.,81 Cal.App.4th 377,410-411 (2000).By contrast,the Court of Appeal has held that

24

"there is no special relationship[] creating a heightened duty of care [to protect a child from

25

sexual abuse]based on a priest/parishioner relationship."Roman Catholic Bishop,42 Ca1.App.4th

26

at 1568. Similarly,a church also has no special relationship with its minor congregants to warn

27

them regarding potential dangers posed by other church members. Conti,235 Ca1.App.4th at

28

1227-28. Further,the Court of Appeal has held thatfamily members ofa convicted,serial

18

DEMCJRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

pedophile had no special relationship with the pedophile's girlfriend or her eight-year old son,to

w arn them of possible harm when hosting the girlfriend and her son at their house. See Eric J.,76

~ Ca1.App.4th at 727-30. This was despite thefact that the pedophile's parole officer had warned the

~family that the pedophile should not be in contact with children.Id. at 719.

Here,the Complaintacknowledges thatthe Corporations were Michael's personal business

~entities.Although Safechuck now claims thatthe Corporations"groomed"children forthe

~entertainment industry,and that Ms. Staikos and Ms.Levine had some supervisory responsibility

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for children,these sham allegations do not come close to alleging that the Corporations were

9

engaged in the type of school, day care center, or other youth program that could give rise to a

10

special in loco parentis relationship requiring the Corporations to train, warn or educate Safechuck

11

regarding the risk of sexual abuse by their owner, Michael Jackson.3 The Corporations were

12

private corporations that were owned 100% by Michael Jackson and used by him to conduct his

13

affairs. The alleged molestation in the Complaint supposedly took place in Michael's residences or

14

during travel where Safechuck, and his family, were personal guests ofMichael. There is no

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allegation in the Complaint that any ofthe alleged sexual abuse took place at the Corporations'

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entrusted to the Corporations'care(as opposed to Michael'spersonal care).

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S afechuck's reliance in the Complaint on Pamela L. v. Farmer, 112 Cal.App.3d 206

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~(1980)(see TAC ¶ 113)is entirely misplaced because the alleged abuse in that case took place in

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the respondent's home (id.at 209-210), whereas the alleged abuse here took place in Michael's

21

 

3 Safechuck's new allegationsthatDefendants provided food,cleaning services(at

 

22

M ichael's home)or arranged travel are insufficient to create an in loco parentis relationship.

23

Furthermore, such allegations are bizarre in light ofthe fact that Safechuck's actual parent was

travelling with Safechuck on the tour when the abuse allegedly began,and was with him during

 

almost all of his interactions with Michael Jackson. In any event,there is literally nothing in the

 

24

Complaint to support these allegations that the Corporations took Safechuck from his parents'

 

care. At best,there are allegations that mightpotentially support an allegation that Michael took

 

25

Safechuck from his parents'care(and,really,there are no such allegations ofthat either). For

26

Safechuck to show that the Corporations are liable for Michael supposedly taking Safechuck away

from his parents, Safechuck would have to allege facts to support a finding that Michael's acts in

27

that regard were "causally attributable to his employment" by the Corporations. Lisa M. v. Henry

Mayo Newhall Mem'l Hosp., 12 Cal.4th 291,301 (1995).No such facts are alleged.

28

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1 'I ~ residences as opposed to at the Corporations' offices. Allegations that Michael used the

2 C orporations to make travel arrangements do not support the allegation that Safechuck was under

3 ~the Corporations' supervision or custody.

4 M oreover, even ifone were to find that the facts here were reminiscent ofPamela L.,the

5 ~negligence theory in that case does not come within the scope of section 340.1(b)(2). In Pamela

6 ~L.,the Court of Appeal reversed an order sustaining a demurrer to negligence claims against a

7 m olester's wife for inviting young girls to her house to swim with her husband when she was not

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8 there (despite knowing about her husband's criminal propensities).Id. at 209-10. That negligence

9

theory could not come within the scope ofsection 340.1(b)(2),because a wife has no legal"right

10 to control"her husband and does not come within the"narrow category ofthird party defendants"

11

to which section 340.1(b)(2)is directed. Quarry, 53

Ca1.4th at 978. Indeed, the Court of Appeal

a3~~~ 12

specifically held that a comparable theory in Joseph

v. Johnson, 178 Ca1.App.4th 1404 (2009),

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w as outside the scope of section 340.1(b)(2)in affirming a demurrer without leave to amend. See

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id. at 1412(wife's negligent entrustment of nieces to alleged molester-husband not within scope of

15

340.1 (b)(2), because wife had no "right to control" husband's conduct)(emphasis added).

16

D.

The Second Cause of Action Fails Because Safechuck Has Not And Cannot

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Adequately Plead Allegations Supporting A Negligence"Per Se" Claim

 

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21 "mandatory reporter"allegations are meritless,because Safechuck has not alleged facts:(1)that

22 ~~ would support a finding that the Corporations or any specific employees ofthe Corporations were

23 "mandated reporters" or "child care custodians" under the statute as operative at the relevant time;

24 and(2)thatany employee ofthe Corporations other than Michael directly supervised him.

25 The Penal Code does not create some general duty on the part of all entities or persons to

26 ~~report suspected child abuse by anyone connected to such persons or entities. As noted above,the

27 law is squarely to the contrary. Eric J., 76 Ca1.App.4th at 727-30. Rather, Penal Code section

28 11165.7 specifically defines a "Mandated Reporter" to include certain employees of various types

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

of public and private organizations such as teachers at public and private schools who regularly

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provide services to children. The Corporations' employees do not fall within any ofthe categories

of individuals required to report under the statute. In any event,the Complaint still does not

identify which class ofemployees were supposedly mandatory reportersand why under the version

of the Penal Code in effect at the time 4, or provide a factual basis to support such contentions. Nor

does the Complaint allege what specific events gave rise to any of the Corporations' employees'

supposed obligation to report. At best, Safechuck now claims that Ms. Levine and Ms. Staikos

were responsible for the well-being ofchildren,but there are no allegations thatthey provided any

supervision of Safechuck beyond making travel arrangements or that they fell under any

particularly category of"child care custodian" or"mandated reporter" under the relevant version

ofthe statute.The new allegations do cure the deficiencies.

E. The First Cause of Action Fails Because Safechuck Has Not Adequately Pled

Facts Supporting a Claim for Intentional Infliction ofEmotional Distress

Safechuck has not alleged any new facts in support of his claim for intentional infliction of

emotional distress.Safechuck's intentionalinfliction allegations claim thata reasonable person

w ould not expect "putting Michael Jackson in positions of authority at MJJ Productions,[and]

M JJ Ventures."(TAC ¶ 123.) Although the TAC now loosely alleges that the "board" conferred

authority on Michael,the allegation cannot be squared with California law which makes clear that

the sole shareholder controls the board,as well as Plaintiffls allegations that both Corporations

were "established by Michael.Iackson."(Id. ¶¶ 3-4.)To the extentthe Court assumes Michael was

ever acting as an agent ofthe Corporation, he put himselfin the position of authority.

Safechuck alleges that a "reasonable-person would not expect or tolerate Defendants to be

incapable ofsupervising and preventing employees ofDefendants,including Michael Jackson,

from committing wrongful sexual acts."(Id. ¶ 124.)This allegation,however,admits thatthe

4 This statute has been amended several times and is very different from the versions in

effect between 1988 and 1992. Safechuck cannot rely on the present version ofthe statute.Penal

statutes are rarely, if ever, retroactively applied. See U.S. Const., art. I, § 10, cl. 1.

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1.

Corporations were "incapable ofsupervising and preventing

Michael Jackson,from

2

committing wrongful sexual acts." To the extent that"outrageous conduct" is that Defendants

3

w ere "incapable" of supervision,the claim is necessarily outside the scope of section 340.1(b)(2).

4

That section requires that the Corporations"could have employed safeguards to prevent the sexual

5

assault

[and]

requires the sexual conduct to have arisen through an exploitation of a

6

relationship over which [the Corporations] have] some control." Doe,42 Ca1.4th at 544.

7

Safechuck also alleges thatthe Corporations'conduct was"intentional and malicious."

8

(TAC 125.)To the extent that Safechuck is really alleging that the "outrageous" conduct was the

9

alleged molestation by Michael himself,or the alleged "procurement" by the Corporations,the

10

claims fail as a matter oflaw. Such claims are for directperpetrator liability under section

11

340.1(a)(1), and are accordingly time-barred. Boy Scouts,206 Ca1.App.4th at 442,445 (claim for

12

intentional infliction ofemotional distress because Boy Scouts were alleged "child procurers"

13

cannot be stated against corporations; that is a claim for direct perpetrator liability under section

14

340.1 (a)(1)and corporations cannot be liable thereunder); Aaronoff, 136 Ca1.App.4th at 920-21

~s

"nonsensical" to apply sections 340.1(a)(2)and (a)(3)to conduct covered by direct perpetrators).

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the alleged abuse, even if it is recharacterized as infliction of emotional distress. Delfino v. Agilent

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20 [employee]substantially deviated]from the employment dutiesfor personal purposes.").

21

F.

The Sixth Cause of Action Fails Because Safechuck Cannot Allege that the

22

Corporations Were His Fiduciaries

23

The cause ofaction for breach offiduciary duty fails because Safechuck has not alleged

24

~sufficient facts to establish that he and the Corporations were in a fiduciary relationship, or how

25

the Corporations breached any such duties. The boilerplate conclusion that there was an in loco

26

parentis duty(TAC ¶ 171)are not supported by the actual allegationsfor reasons explained above.

27

~But even ifthere is an in loco parentis duty, that means there is a special relationship for a

28

negligence-based duty of care; it does not rise to the level offiduciary duty.

DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

"Before a person can be charged with a fiduciary obligation,he must either knowingly

2

~undertake to act on behalfand for the benefit of another, or must enter into a relationship which

3

4

5

6

~ imposes that undertaking as a matter of law." City ofHope Nat. Med. Ctr. v. Genentech, Inc., 43

~ ~Ca1.4th 375,386(2008)(brackets and internal quotation marks omitted).Here,there are simply no

~allegations whatsoever to support a finding that the Corporations"knowingly undertook] to act on

~behalfand for the benefit of[Safechuck],or" that the Corporations "enter[ed]in a relationship

7

w hich imposes that undertaking as a matter oflaw."Ibid.

8

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Safechuck alleges the following to support his claim that the Corporations were his

fiduciaries, because he and his mother "agreed to place their trust and confidence" in them,

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expecting them to "ensure [Safechuck's] safetey."(TAC ¶ 172.)But there are nofactual

11

allegations to back up this legal boilerplate. The mere fact that Safechuck "trusted"the

12

Corporations does not come close to supporting an allegation that they were his fiduciaries. See,

13

e.g., City ofHope, 43 Ca1.4th at 389("With respect to City of Hope's claim that it reposed trust

14

and confidence in Genentech, we note that `[e]very contract requires one party to repose an

15

element of trust and confidence in the other to perform."').

16

The new allegations that Michael and Defendants groomed minors in the entertainment

17 ~industry,the Corporations arranged and/or paid for lodging or travel,and thatthe Corporations

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.,

18 paid for food or cleaned Michael's house are insufficient to rise to the level of special relationship

20

to rise to the level of a fiduciary relationship, and cannot be squared with the numerous allegations

21

m aking it clear that the core relationship was between Michael and Safechuck, not the

22

23

24

C orporations. The demurrer should be sustained as to all causes of action.

D ATED: March 31,2017

KINSELLA WEITZMAN ISER KUMP &

ALDISERT LLP

25

26

27

28

Jonathan P. Steinsapir

A ttorneys for Defendants

M JJ Productions,Inc. and MJJ Ventures, Inc.

`

DEMCJRRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT

1

2 I, Jonathan P. Steinsapir,declare as follows:

DECLARATION OF JONATHAN P.STEINSAPIR

3

4 W eitzman Iser Kump & Aldisert,LLP,counsel ofrecord for Defendants MJJ Productions,Inc.,

1. I am admitted to the State Bar of California and I am a partner at Kinsella

5 and MJJ Ventures,Inc.I have personal knowledge ofthe facts setforth herein,which are known

6 by me to be true and correct, and ifcalled as a witness,I could and would competently testify

7 thereto.

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9 D efendants planned to file this demurrer. I explained that the general legal basis for this demurrer

2. On March 8, 2017,I sent an email to counsel ofrecord for Plaintiff,explaining that

10 w as the same as for the demurrer to the Second Amended Complaint,and I noted that further meet

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and confer did not appear to be necessary. Counsel for Plaintiffresponded in an email and agreed

that no further meet and confer was necessary.

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I declare under penalty ofperjury under the laws ofthe State ofCalifornia thatthe

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foregoing is true and correct.

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E xecuted March 31,2017,in Santa Monica, California.

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10386.00254/382792

 

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Jonathan P. Steinsapir

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DEMURRER TO JAMES SAFECHUCK'S THIRD AMENDED COMPLAINT